Garage Management Corp.

National Labor Relations Board - Board Decisions

Aug 3, 2001

334 N.L.R.B. 940 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
Garage Management Corporation and Gordon Pace,
an Individual. Case 2–CA–29633
August 3, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On February 17, 1999, Administrative Law Judge Ste-
ven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and a brief in opposi-
tion to the General Counsel’s exceptions and in support
of cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.
We adopt the judge’s decision in its entirety, including
his finding that the Respondent violated Section 8(a)(1)
of the Act by filing a baseless lawsuit against Gordon
Pace in the New York State Supreme Court on August
12, 1996,1 in retaliation for his protected, concerted ac-
tivities. We also find that this lawsuit violated Section
8(a)(4) of the Act. Accordingly, we find merit in the
General Counsel’s exception to the judge’s failure to
order the Respondent to reimburse Pace for his legal and
other expenses incurred in his defense of the August 12,
1996, baseless and retaliatory state court lawsuit.2
The 8(a)(4) Violation
In his February 17, 1999 decision, the judge found
that:
The evidence is thus clear that this lawsuit was filed in
retaliation for Pace’s filing the various charges, griev-
ances and complaints [with the Board and other agen-
cies] against Respondent. The litigation was filed in re-
sponse to Pace’s filing of these actions, and sought to
prevent him from filing further charges against Re-
spondent, and prevent him from “conspiring with or
encouraging” other employees to file charges against it.
Thus this lawsuit not only was brought to retaliate
against Pace for the filing of the various causes, and for
engaging in protected, concerted activities with others,
but to specifically enjoin him from engaging in his right
to file further charges against it. The lawsuit was a di-
rect attempt by Respondent to nullify the Board’s juris-
diction as it affects Pace. (Citation omitted.)
1 Index No. 96/114523. As noted by the judge, the Respondent vol-
untarily dismissed this lawsuit with prejudice on November 18, 1996.
2 Chairman Hurtgen does not pass on whether the lawsuit was base-
less, i.e., without even a colorable basis. In his view, that is the stan-
dard to be used to determine whether an ongoing lawsuit is to be con-
demned as unlawful. See Bill Johnson’s Restaurants v. NLRB, 461
U.S. 731, 743–744 (1983). Where, as here, the lawsuit is over and the
plaintiff-Respondent has not prevailed, the issue is simply whether the
lawsuit is in retaliation for the exercise of a Sec. 7 right. Id. at 747.
Accordingly, the judge found that the Respondent’s conduct
violated Section 8(a)(4) and (1) of the Act.
The next day, however, the judge issued without ex-
planation an errata rescinding the finding of an 8(a)(4)
violation. In his exceptions and brief, counsel for the
General Counsel asserts that although Pace’s unfair labor
practice charge alleged that the lawsuit violated Section
8(a)(4) and (1), the 8(a)(4) allegation was inadvertently
omitted from the complaint. Citing Pergament United
Sales, Inc., 296 NLRB 333 (1989), enfd. 920 F.2d 130
(2d Cir. 1990), the General Counsel asserts that the
8(a)(4) violation is closely connected to the subject mat-
ter of the complaint and has been fully litigated. Accord-
ingly, he asks the Board to find that the Respondent’s
August 12, 1996 lawsuit against Pace violated Section
8(a)(4) as well as Section 8(a)(1).
We find merit in the General Counsel’s exception. It
is well settled that the Board may find and remedy a vio-
lation, even in the absence of a specified allegation in the
complaint, if the issue is closely connected to the subject
matter of the complaint and has been fully litigated.
Pergament, supra at 334. This practice has been fol-
lowed in instances when the allegation found involved a
different section of the Act than that alleged. See Wood-
line Motor Freight, 278 NLRB 1141, 1237 (1986), enfd.
in pertinent part 843 F.2d 285 (8th Cir. 1988) (work rule
change violated Sec. 8(a)(3) and (4) despite absence of
an 8(a)(4) allegation).
With respect to the 8(a)(1) and 8(4) allegations here,
both allegations focus on the same set of facts, i.e., the
Respondent’s purpose for filing the state court lawsuit
against Pace. The ultimate issue in both allegations is
the same: whether the Respondent filed the lawsuit for
reasons that are unlawful under the Act. The language of
the lawsuit itself indicates that, by filing the lawsuit, the
Respondent retaliated against Pace’s protected concerted
activities and attempted to enjoin him, inter alia, from
filing unfair labor practice charges or giving testimony
under the Act.3
3 The lawsuit alleges that Pace
has filed, caused to be filed, or conspired with others to have filed
with several administrative agencies, seven charges against GMC: six
National Labor Relations Board charges and one charge with the New
York State Division of Human Rights. Pace has also recently threat-
ened to file further administrative agency charges against GMC. In
addition, Pace has filed four grievances against GMC with Interna-
tional Brotherhood of Teamsters Local Union No. 272, his union rep-
resentative; has filed charges against GMC with the International
334 NLRB No. 116
GARAGE MANAGEMENT CORP. 941
Moreover, it is clear that the issue of the Respondent’s
purpose in filing the lawsuit was fully litigated. Indeed,
the Respondent does not claim that the matter was not
fully litigated; and we can discern no reasonable way the
Respondent could have done so, in light of the close fac-
tual and legal parallels between the 8(a)(4) and (1) viola-
tions. In arguing against the appropriateness of finding
an 8(a)(4) violation, the Respondent relies solely on the
absence of an 8(a)(4) allegation in the complaint. As
shown, the law is that such absence is not necessarily
fatal to the finding of a violation.
REMEDY
The traditional remedy awarded by the Board in cases
where an employer has filed a baseless, retaliatory law-
suit is an order requiring the employer to reimburse the
targeted employee for all legal and other expenses in-
curred in defending against the lawsuit, with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). See Teamsters Local 776 (Rite Aid Corp.),
305 NLRB 832, 835–836 fn. 10 (1991), enfd. 973 F.2d
230 (3d Cir. 1992), cert. denied 507 U.S. 959 (1993); BE
& K Construction Co., 329 NLRB 717 (1999).
The reimbursement remedy is a make-whole remedy
for filing and maintaining state court lawsuits in violation
of the Act. The remedial order is designed to restore the
status quo ante and to make whole the party who had to
defend against an unlawful legal action. Teamsters Lo-
cal 776 (Rite Aid Corp.), supra. Accordingly, we find no
merit in the Respondent’s exceptions contending that the
Board’s reimbursement remedy, in cases such as this
one, is an extraordinary remedy which must be pled in
the complaint or during the hearing, and that the General
Counsel bears the burden of demonstrating the necessity
for the remedy.
We shall order the standard reimbursement remedy
here.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Garage
Management Corporation, New York, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Initiating a baseless lawsuit against employees in
retaliation for their protected concerted activities and for

Brotherhood of Teamsters’ Election Officer; and has also filed three
NLRB charges against the Union.
4 Chairman Hurtgen concludes that the same remedy would obtain,
even if the lawsuit were only unlawful under Sec. 8(a)(1).
filing charges or giving testimony under the National
Labor Relations Act.”
2. Add the following as paragraph 2(a) and reletter the
subsequent paragraphs.
“(a) Reimburse Gordon Pace for all legal and other ex-
penses incurred in the defense of the Respondent’s Au-
gust 12, 1996 lawsuit (Index No. 96/114523), with inter-
est.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT initiate a baseless lawsuit against you
in retaliation for your protected concerted activities and
for filing charges or giving testimony under the National
Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse Gordon Pace for all legal and
other expenses incurred in the defense of the Respon-
dent’s baseless and retaliatory lawsuit, with interest.

GARAGE MANAGEMENT CORPORATION

Judith Anderson, Esq., for the General Counsel.
Donald Savelson and Michael Lebowich, Esqs. (Proskauer
Rose LLP), for the Respondent.
Arthur Schwartz, Esq. (Kennedy, Schwartz & Cure), New York,
New York, for the Charging Party.

DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge and an amended charge filed on August 19 and Septem-
ber 26, 1996, respectively, by Gordon Pace an individual
(Pace), a complaint was issued against Garage Management
Corporation (Respondent or GMC) on April 13, 1998.
The complaint alleges essentially that Respondent engaged
in discriminatory action against Pace in violation of the Act.
Pace was a member of Local 272, Garage Employees Union,
International Brotherhood of Teamsters (the Union).
Specifically, the complaint alleges that on August 12 and 20,
1996, Respondent filed state lawsuits against Pace which al-
leged that various activities engaged in by Pace, including the
filing of grievances with the Union against Respondent; the
filing of charges with the Board and with the Union election
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
officer; acting in concert with other employees in connection
with an OSHA investigation; assisting another employee in
filing a complaint with the NYS Division of Human Rights;
and assisting another employee in filing a charge with the
Board, constituted an abuse of process. The complaint alleges
that the lawsuits were filed because Pace engaged in the above
activity.
The complaint further alleges that Respondent discharged
Pace on August 19, 1996, because he engaged in the above
activity, and other union activities, and because he filed charges
and gave testimony under the Act.
Respondent denied the material allegations of the complaint,
and during the hearing was permitted to amend its answer to
assert the affirmative defense that Pace was a statutory supervi-
sor within the meaning of Section 2(11) of the Act. On August
10–13, 26–28, September 8, and 15–18, 1998, a hearing was
held before me in New York City.1
On the evidence presented in this proceeding, and my obser-
vation of the demeanor of the witnesses and after consideration
of the briefs filed by the General Counsel and Respondent, I
make the following.
FINDINGS OF FACT
JURISDICTION
Respondent, a New York corporation having an office and
place of business at 124 East 63rd Street, New York City, has
been engaged in the management and operation of various
parking garages, including the Riverview Garage, in New York
City. Annually, Respondent derives gross revenues in excess
of $500,000 from its business, and during the same period of
time, purchases and receives at its facility goods, supplies, and
materials valued in excess of $5000 directly from points located
outside New York State. Respondent also admits, and I find
that the Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
The Alleged Unfair Labor Practices
Background
Respondent operates about 60 parking garages in Manhattan.
Of that number it owns 15 to 20 garages, which it also man-
ages, it manages between 5 and 10 garages which are owned by
others, and leases about 30 other garages which it manages.
Approximately 350 employees work in its garages.
Respondent’s officials include Richard Chapman, its owner,
Gordon Hamm, its president and director of operations, and
personnel director, Douglas Kamm. Kamm hires employees
and disciplines them by issuing warnings and suspensions.
Decisions to discharge are sometimes made by Kamm without

1 The hearing was opened before Judge Eleanor MacDonald. Upon
motion, she recused herself on the ground that her late husband had
been a monthly customer at the Riverview Garage, the location of the
dispute, and that customers with whom she may be acquainted may be
called to testify.
Judge Raymond Green substituted for Judge MacDonald. Upon mo-
tion, he recused himself on the ground that his son, an attorney, was
associated with the law firm which represented Respondent and filed
the state lawsuits against Pace.
obtaining the approval of Chapman or Hamm, but in other
cases, all three officials play a role in making the decision.
Field or regional supervisors report to Kamm. The field su-
pervisors are responsible for the overall operations of various
garages assigned to them. They visit the garages periodically to
check on their operation. Each garage has a manager, an assis-
tant manager (foreman), relief or night foreman, and attendants,
all of whom are members of the bargaining unit and repre-
sented by the Union or Local 32B, Service Employees Interna-
tional Union, AFL–CIO (Local 32B). The employees of the
Riverview garage are represented by the Union.
The Riverview garage has 12 floors in 2 buildings: 8 floors
in 1 building, and 4 floors in another. The 2 buildings are con-
nected by a walkway on the main floor. The cars are moved to
the various floors by 3 elevators. Both monthly, and transient
customers park in the garage.
Gordon Pace
Pace was employed for 7 years for Respondent during all of
which time he worked in the Riverview garage. He worked the
night shift from 5 p.m. to 2 a.m., 5 days per week. Pace testi-
fied that he was employed as a foreman, which was the same as
an attendant, in which his duties were to park and retrieve cars.
In the last 2 years prior to his discharge he worked as a relief
foreman, also called night foreman, or assistant foreman 2
nights per week on Sunday and Monday. During the remaining
3 days per week he worked as an attendant.
Respondent asserts that as a relief foreman Pace possessed
and exercised supervisory authority sufficient to warrant a find-
ing that he was a statutory supervisor within the meaning of
Section 2(11) of the Act.
The Supervisory Issue
During the daytime hours the garage was managed by a
manager and a foreman. At night the relief foreman was in
charge. The manager’s shift ends when the relief foreman
comes on duty.
At the start of Pace’s shift, at 5 p.m., the shift of the garage
manager, Ismael Berrios, was ending, and he would leave the
premises. His supervisors Hendrick Reynolds and Richard
Frohnoefer, although not on the garage premises, were on duty
in the evening and were available by beeper to assist if any
problems arose.
During his shift Pace worked with three other employees. At
8 p.m. one employee ended his shift and at 11 p.m. another
worker left, leaving Pace with one other employee until the end
of his shift.
In addition to his regular wage rate Pace received additional
pay called extra compensation (EC) of $200 per month, for his
work as a relief foreman.
The following narrative refers to Pace’s work as a relief
foreman.
According to his testimony Pace was in charge of the opera-
tion of the garage. He was responsible for all moneys col-
lected, recorded how many transient tickets were issued, signed
up new monthly customers, later changed to state that if a pro-
spective monthly customer came when he was a relief foreman,
he would advise them to speak to the manager the next day, and
GARAGE MANAGEMENT CORP. 943
would make the same referral when working as a regular atten-
dant. Pace processed claims of damage to vehicles, “constantly
check the operation of the garage,” ensures that customers’
calls that their cars be ready in the morning are noted on the
blackboard, and tell employees to retrieve certain cars at certain
times. However, Pace later testified that no one has a specific
responsibility to make sure that all customer requests written on
the board are completed on the night shift, because everyone
works together. He added that an employee or relief foreman
may try to bring a car down to the main level if necessary, but
that all employees work together as a team in completing their
work. He also noted that if a car is listed on the board as being
requested, they attempt to put in an easily obtainable location
for the day crew. If they cannot do so because of overcrowd-
ing, the car is not moved. He also noted that it is the responsi-
bility of the attendant who relieved him on the overnight shift
to see that the cars listed on the board are easily accessible for
the morning’s rush.
Pace testified that if there was a problem or complaint con-
cerning his working conditions he would speak to garage man-
ager Berrios, even though he was not present in the garage
during Pace’s working hours.
Regarding dinner breaks, Pace stated that employees knew,
automatically, when to take such breaks—according to their
start times. Thus, if an employee begins work at 3 p.m., he
would take a dinner break after 4 hours. Pace further stated that
employees arrange among themselves when they would take
breaks, rotating their breaks, or on occasion taking their breaks
at the same time. Pace stated that it was left to the discretion of
the employees as to when they would take their breaks, and that
even if the garage was very busy, an employee could leave on
break, adding that some employees waited to take their break
until the work slowed down, and others just left. Pace noted
that he “could not say anything about it.”
Pace further stated that if 30 cars were lined up to enter the
garage, and an employee wanted to take his break, he could not
tell the worker that he could not take a break at that time.
Pace never recommended that any employee be hired or dis-
ciplined, and he never hired anyone.
Employee Miguel Matos worked the same shift as Pace. He
began work for Respondent in 1989 and transferred to River-
view late 1995. He received no training when he began work at
Riverview since he knew his basic responsibilities from his
work at the other garage. If he had any questions he asked his
coworkers, including Pace.
Matos’ responsibilities included collecting money and tickets
from customers. Prior to the end of his shift, he gave them to
the person in charge, either Pace or Foreman Hernandez. He
requested vacation time from Berrios. He never received per-
mission from Pace.
Matos stated that the manager and supervisor prepare the
weekly schedule which lists the hours to be worked by him. If
Matos sought a change from that schedule he spoke with the
manager. If Matos expected to be late, or was out sick, he was
required to call 3 hours before the start of his shift, and the
manager would arrange for a substitute.
Matos also stated that a foreman could ask an employee to
work overtime, but the worker was not obligated to perform
such work. If the employee agreed to work overtime, the fore-
man informed the supervisor. Matos noted that on a few occa-
sions, the foreman asked an employee to work overtime, but the
supervisor advised that he wanted a different person to work.
Regarding meal breaks, Matos stated that breaks are taken
when circumstances permit, depending on the volume of work
to be done. He stated that he does not need permission to take
his meal break, or to leave the garage and buy his lunch, adding
that if he has worked 4 hours he is entitled to take his lunch
break at any time. He and his coworkers decide when they
would take their lunch. If work was slow, they took their break
at the same time.
Estela stated that a meal period is not provided by Respon-
dent, but that the workers take 5 to 10 minutes to buy food at a
local store. Estela stated that he did not take any breaks when
he worked the night shift.
Alexander Casasola worked with Pace on Sundays when
Pace was the relief foreman. Casasola stated that Pace col-
lected cash and stood outside the garage and smoked. When
Pace was busy another attendant collected the cash and gave it
to Pace. Pace held the money until the end of the shift and
made a deposit.
Casasola stated that Pace did not move cars often, but that he
occasionally did so when he was not busy and the other atten-
dants were busy.
Casasola stated that he was not “really” given directions by
anyone in the garage. If an employee had difficulty retrieving a
car, he would call on the intercom, and request assistance in
moving other cars so that he could access the car requested.
Any employee could answer the intercom and advise the caller.
Casasola further stated that Pace did not set his hours, did
not tell him when he could take vacation, both of which were
arranged by the manager. Requests for a change of shift were
addressed to the manager, who he went to during the day even
though Casasola was employed at night.
Charles Wigfall worked with Pace. He stated that Pace was
supposed to tell the employees where to put the cars and was in
charge of collecting the money from customers. He stated that
Pace was actively involved in retrieving cars. Sometimes he
would leave the area in front of the garage 15 times per shift to
get the vehicles. At such times other employees would collect
money from customers and direct their entry and exit from the
garage.
Wigfall stated that on Sundays Pace parked cars on the main
floor, and did not use the elevators because when he was in
charge he wanted to remain on the main floor. However, if a
customer requested a car on an upper floor, either Pace or an-
other employee would retrieve it. In his absence other employ-
ees would service waiting customers. Any employee collected
money if tendered by the customer and turned it over to Pace.
Wigfall stated that the employees on his shift arranged the
cars by order of the time they were scheduled to be retrieved
the following morning. All employees decided where to park
the cars, and they worked as a team in that effort.
There was evidence that Carlyle Smartt, the night foreman at
the 57th Street garage, a location which serviced and housed
National Car Rental vehicles, in addition to performing many
of the same duties as Pace, such as parking cars, collecting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 944
money, giving tickets to parkers, instructed the three employees
on his shift as to how many National cars had to be prepared,
and who would clean the garage.
He told the workers when they could take their breaks, and
stated that employees could not take breaks without asking his
permission.
Smartt trained new employees by telling them what to do,
and how the garage was run. Supervisors asked his opinion of
the new employee, and Smartt gave his oral evaluation of them.
Smartt has told a supervisor that he could not work with a new
employee, and he should remove him from the premises be-
cause he could not drive, or damaged a car. The supervisor
came to the garage and spoke to the employee before transfer-
ring him, asking him what happened and what the problem was.
The employee was then transferred to a different garage.
Smartt could not recall such an instance occurring in 1995 or
1996.
Ismael Berrios, the manager of the Riverview garage, was
responsible for reconciling the daily reports which included
preparing a report of the number of tickets issued and the
money collected. Berrios stated that he told the men where to
park the car, which car to retrieve, and what areas of the garage
needed to be cleaned. Berrios noted, however, that when he is
in charge, the attendant takes the car and parks it without in-
struction since he knows, based on his work in the garage
where there was room for the vehicle. Berrios also stated that
he also would give the customer a ticket, and assign an em-
ployee to park it. He conceded that he does not stay in one area
and tell employees what to do, and that if he was busy, the at-
tendant would take care of the customer without instruction as
“they knew what to do.” If a car entered the garage, and he and
other employees were present, one of the employees would
park it, either by assignment from Berrios or would do it on his
own. If the garage is busy Berrios will park cars on the main
floor but as a rule he just moves them into the garage away
from the entrance so more cars can enter. He also noted that
the entire crew, including himself, works as a team in parking
the cars. Whoever is available, including himself, when a car
enters will park it.
Berrios noted that he occasionally leaves the main floor to go
to the upper floors, either to check a car which was damaged, to
retrieve a car if other workers were busy, or to check the ga-
rage.
Regarding training of new employees, Berrios testified that
he conducts the orientation, telling the recruit what his work
consists of. Either he or the relief foreman assigns the new
recruit to work with an experienced employee, who explains
garage procedures and tells the employee how to park the cars.
He stated that the new employees were “basically trained” by
the most experienced employees in the garage. He also noted
that he and the night foreman evaluate the new employee by
answering questions of the supervisor as to how the employee
was performing. Berrios conceded that the supervisor also asks
other employees the same question. Following the evaluation,
Berrios gives his opinion as to whether the employee was capa-
ble of parking cars, and his recommendation is followed by the
supervisor.
Berrios stated that the manager or the foreman decides who
would take their breaks when the garage was busy, but then
stated that the crew knows when the busy period is, and he
“does not really have to tell them to take a break,” but neverthe-
less they ask permission to take a break, which he approves.
He stated that employees cannot simply walk away and take a 5
or 10 minute break. Breaks are taken only when the garage is
not busy.
Stephen Denaro, the field supervisor who was employed in
the evenings, testified that the night foreman was in charge of
the garage, and could require an employee to work overtime if
the garage was busy. He stated that a night foreman’s decision
to have an employee work overtime does not have to be ap-
proved ahead of time by him, adding that he is usually notified
after the fact. He further stated that if an employee calls in
sick, the night foreman has the authority to tell an employee to
work overtime, however the foreman could not require the
worker to stay later. If the employee refused the foreman re-
quests the supervisor to obtain a replacement and the supervisor
would obtain an employee from another garage.
Denaro further stated that if an employee causes minor dam-
age to a car, and the customer offers to waive his right to file a
claim in exchange for not paying the parking fee, the night
foreman has the authority to permit the customer to leave with-
out paying. In addition, if a customer was short $2 or $3 on a
$21 parking fee, the foreman is authorized to permit the cus-
tomer to leave without paying all he owed. The foreman or
even an employee could also call the supervisor and ask his
permission, but for $1 or $2, the foreman would not call. De-
naro noted that he would expect to be called if the amount
sought to be waived was $5. Generally, Denaro goes to the
garage after the customer left and approved the transaction.
Denaro stated that the night foreman reports to the manager,
and has fewer duties than the manager, who does vacation
scheduling, and checks employees’ timecards.
Denaro stated that the night foreman trains new employees
and informs the supervisors as to their performance. The night
foreman shows the new employee where to park the cars, how
to park them, how to speak with customers, and informs them
as to company policies, and safety issues, and when to take
breaks. Denaro has acted on their evaluations by terminating a
new employee and transferring them to a different garage
which was not as busy. Denaro noted that generally, the night
foreman will remain on the main floor, but occasionally goes to
an upper floor if necessary. He conceded that if the new em-
ployee needed help on an upper floor, other employees advise
them as to garage procedures. Denaro personally asked a night
foreman how a new employee was working out.
Denaro further testified that the night foreman assigns par-
ticular times for employees to take breaks, which can range
from 15 minutes to 1 hour.
John Incandela, Respondent’s regional supervisor who was
responsible for Riverview and other west side locations, testi-
fied that the manager, Berrios, is ultimately responsible for the
garage 24 hours per day, 7 days per week, regardless of
whether he is present.
Incandela noted that only the relief foreman is supposed to
handle cash, not the attendants. His statement that similarly
GARAGE MANAGEMENT CORP. 945
only the manager may take cash payments was contradicted by
Berrios and other employee witnesses who stated that employ-
ees accept cash, but then turn it over to the manager or relief
foreman.
Incandela stated that if a new employee is assigned to the
night shift, the relief foreman is responsible for his training. In
deciding whether to retain the new worker, he asks the relief
foreman whether he is performing well, whether he needs more
training, and whether he should be retained. Incandela stated
that he relies, to a 90 percent extent, on what he is told the re-
lief foreman. He conceded, however, that he also asks other
employees how the new employee is working out.
Douglas Kamm, Respondent’s director of personnel, testified
that he spoke with relief foreman regarding the performance of
new and long-term employees. He stated that inasmuch as
there is a 60-day probationary period, he is anxious to deter-
mine, prior to the end of the probationary period, whether the
employee should be retained. Accordingly, if the employee
works at night, he speaks to the relief foreman and is told about
the employee’s attendance record, whether he took extended
breaks, and occasionally would make a recommendation that
the employee be dismissed. Kamm said that if the relief fore-
man could not give a positive recommendation, Kamm would
be inclined to discharge the employee. In addition, Kamm has
acted on a relief foreman’s assessment that an employee was
basically performing well, but could not keep up with the de-
mands of a busy garage. On those occasions, the relief foreman
would recommend that the new employee be transferred to a
less busy garage, and Kamm would approve that recommenda-
tion and move the employee.
Pace’s Union Activities and Activities in Behalf of Employees
Pace was a member of the Union. In January 1996 he began
a campaign for election as international delegate, and was
elected. Pace ran for union office in April 1996 and again in
December 1996 after his discharge. He was a candidate on the
rank and file unity slate, which ran in opposition to the incum-
bent union pride and power slate.
The Grievance of May 19, 1995
A warning notice dated May 11, 1995, named five members
of the Riverview crew: Drayton, Hernandez, Matos, Pace and
Sas. It stated that the violation, which occurred “through May
10,” was that numerous reports of items missing from custom-
ers’ cars had been received during the past 30 days. The warn-
ing stated that it was a final warning, and that an investigation
of the incidents would continue, and that the employee or em-
ployees responsible for these incidents would be terminated.
Pace testified that he first learned of the warning from Union
Agent Adrian Merced, on about May 15. Pace called Raul
Coronado who ran for union office on Pace’s slate. Coronado
advised Pace to file a grievance. Pace told Drayton that he
should file a grievance, and told Matos and Sas that Coronado
advised such action.
On May 19 Pace filed a grievance against Respondent, alleg-
ing that it harassed him by making false accusations of theft.
Pace testified that 2 months went by without any action be-
ing taken by the Union. He was advised by Coronado to file a
charge. On July 19 he and Matos filed separate charges against
Respondent and the Union. Pace assisted Matos in the filing of
the charge. Pace filed the charge because the Union had not
proceeded with his grievance. Each charge alleged that Re-
spondent harassed each of them and other employees having
more seniority, and that it enforced plant rules more strictly
against each of them than against other employees. Pace’s
charge also alleged that Respondent threatened to retaliate
against him because of his union activities in behalf of the rank
and file unity slate.
A grievance meeting was held, presumably after the charge
was filed and it was agreed that the warning notice would be
withdrawn. Respondent stipulated at the hearing that it was
withdrawn as to Pace only.
Pace’s Activities in Behalf of Worker Safety
An OSHA investigation of the Respondent’s facilities was
begun in January or February, 1995.
On about December 25, 1995, Pace sent to Respondent a
“notice of intent” to cooperate with OSHA’s investigation. In
the letter he stated that Supervisor Morrison Banner informed
employee Miguel Matos that he would be transferred from
Riverview. Pace stated that that transfer, and other unspecified
actions of Respondent were attempts to “feret out and coerce”
employees who Respondent believed cooperated with OSHA’s
investigation.
Pace prepared and sent to Respondent notices of intent for
employees Luis Estela, George Hernandez, and Matos which
stated that they intended to cooperate with the OSHA investiga-
tion. Pace stated that by December 1995 he believed that Re-
spondent had undertaken a “program” to identify employees
who it believed had cooperated with the OSHA investigation.
He conceded that although Matos and Hernandez were two
such identified employees, they continued to be employed by
Respondent at the time of the hearing. Pace further stated that
he was not told by Respondent that he would be discharged if
he cooperated with OSHA, nor was he told that employees
should cooperate with the investigation.
Pace was present when Hernandez gave an affidavit to an
OSHA investigator, and he spoke to Estela several times about
cooperating with the investigation.
The Grievance of January 16, 1996
In early January Pace received 3-1/2 hours overtime pay al-
though he worked 5 hours during the period involved. He
asked Manager Berrios about it, and was told that Supervisors
Incandela and Frohnoefer were responsible for the calculation.
Pace did not ask them or Kamm to look into the matter, but
instead filed a grievance on January 16, which alleged that
Respondent had “illegally reduced my earned wage. . . .” He
attributed the reduction in his pay to discrimination since at the
same time, a coworker had worked 4 hours overtime, and
parked his car in the garage and had not suffered a reduction in
his pay. Pace had also parked his car in the garage and be-
lieved the deduction was made for that reason. His reason for
not inquiring was that his supervisors and manager were hostile
toward him at that time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 946
Following a grievance meeting, Pace received the amount
claimed.
On January 17 Pace filed a complaint with OSHA claiming
that the reduction in his pay was discriminatory. He testified
here that he believed that Respondent was retaliating against
him because it believed that he was a witness in the OSHA
investigation. OSHA dismissed or deferred his charge.
Personnel Actions Against Pace
The Warning of January 26
On January 26, 1996, Pace was issued a warning for con-
ducting personal business on company property, unauthorized
solicitation on company premises, and for failure to pay for
parking while soliciting. This warning grew out of Pace’s cam-
paigning for delegate in other garages.
After receiving this warning Pace filed a notice of protest
with Barbara Zack Quindel, the Teamsters election officer,
objecting that Respondent and the Union were preventing him
from campaigning in the upcoming international delegate elec-
tion. Quindel determined that Respondent violated the rules
which governed campaigning in the Teamsters election by issu-
ing a warning to Pace for conduct which had been engaged in
by union officers. Respondent agreed to withdraw the warning
notice.
Pace also filed an unfair labor practice charge, Case 2–CA–
29126 on February 15, 1996, alleging that Respondent’s actions
restrained his right to engage in union activity. He stated that
he filed the charge because of the warning he received. Pace
ultimately withdrew the charge.
Respondent argues that Pace filed the charge in bad faith be-
cause of Quindel’s statement in her decision that Pace parked
his car where it “normally would have required a ticket,” and
accordingly, the warning was valid when issued. It asserts that
the warning was a valid warning, and indeed, Pace testified that
he was “vaguely aware” of rules prohibiting the parking of the
attendant’s personal car in a garage without the approval of a
supervisor, and distribution of literature on company property.
Pace helped Matos write a charge, which was filed on May
30, 1996, which alleged that Matos had been illegally trans-
ferred.
Pace testified that Estela told him that an OSHA investigator
suggested that he file charges of sexual harassment with the
NYS Department of Human Resources concerning Manager
Berrios. In late June 1996 Pace accompanied him to that office,
helped interpret for him, and assisted in his filing charges there.
Disciplinary Actions Concerning Discourtesy to and Abuse of
Customers
The Warning of February 6, 1996
John Incandela, Respondent’s regional supervisor testified
that in January 1996 he received complaints by customers that
their cars were left “buried” behind other cars when they sought
to obtain them in the morning. As Pace was working the night
shift, he was responsible to make sure the cars were available
for the morning shift.
As a result, Pace was issued a warning notice on February 6,
which stated that it was a “final warning—continue to fail to
perform this basic job duty will result in termination or trans-
fer.” Incandela was asked by Riverview Garage Manager Ber-
rios to speak to Williams, a monthly customer. Williams told
him that several times his car was not available, having been
“buried” behind other cars.
Pace was issued another warning notice that day, noting that
although he had promised a customer that he would “boost” his
battery, he did not do so, requiring the customer to seek help in
the morning. Kamm explained that Respondent’s policy for-
bade the boosting of car batteries, but this “final warning” was
issued because it was considered discourtesy and a lack of re-
sponse to a customer to promise to perform a service, and then
not do it.
Pace denied receiving that final warning on the date it was
issued, or having discussed it with any management personnel.
Rather, he stated that he received it at a union grievance hear-
ing more than 7 months later, in late September 1996 after his
discharge.
However, Kamm testified that he gave the warning to Incan-
dela to give to Pace. Incandela testified that he gave the notice
to Field Supervisor Richard Frohnoefer, who later informed
Incandela that he tendered it to Pace, who refused to accept it.
Frohnoefer testified that he offered the document to Pace, who
said he knew exactly what it was, refused to take it, and walked
away. Frohnoefer left it on the desk. I credit Respondent’s
witnesses. In view of Pace’s admitted refusal in June 1996, to
accept a certified letter on the ground that he was not expecting
such a letter and did not know who sent it, it is quite believable
that Pace would refuse to accept the warning letter.
The question, of course, is not whether Pace received it, but
whether it was issued for cause, and whether Respondent was
entitled to rely on it in making its decision to discharge Pace.
The answer is yes, in each case.
The Warning of June 20, 1996
Respondent has a rule that patrons must call in advance in
order to obtain their car. Monthly customer Hany Alexander
testified that she entered the garage on June 2, 1996, a Sunday
afternoon and asked for her car without calling in advance.
Pace told her that that was the second time she did not call for
her car, and that the next time he would not retrieve it. She
observed that at that time, 4 employees were sitting down and
not working, and Pace was smoking and apparently did not
want to be disturbed. She left and took a taxi.
Mrs. Alexander’s husband called Respondent’s officials and
complained, and she then wrote a letter of complaint which was
consistent with her testimony. Her letter stated that “a person
like Pace should not be permitted to work with the public. If
this problem is not corrected, I will have to move my car to
another parking company, who will provide more pleasant
workers.”
She added that usually she calls ahead of time for her car, but
was not aware that she had to call 1 hour in advance, as advised
by Pace. In the past, when she requested her car without call-
ing, Pace told her to wait a few minutes, and would get the car.
On June 20 Kamm sent Pace a letter which stated:

In recent weeks, the company has received several
complaints from customers at the Riverview Garage citing
problems with the service provided in general by the night
GARAGE MANAGEMENT CORP. 947
crew and by you specifically. Customers mentioned
“rudeness, indifference and lack of responsiveness”,
among other things, in their letters and or calls.
We are currently investigating these complaints further
to determine their seriousness but in the meantime, please
be aware of them and make an immediate effort to turn
things around.
Please call me if you have questions.

This letter was sent by certified mail. Pace did not claim it at
the post office because he was not expecting a certified letter
and did not know the sender. One month later on July 18 the
letter was attached to Pace’s paycheck, and he received it at
that time.
On July 22 Pace called Kamm and asked for the names of
the customers referred to in the letter. Kamm refused to supply
the names, and Pace filed a grievance that day. He received a
grievance hearing date of August 22, but was discharged the
day before.
In mid July, the rear of customer Stanley Royce’s car was
badly damaged. He complained to Manager Berrios, and even-
tually sent a letter dated July 22 regarding the damage.
Royce’s car was damaged following his leaving it to be
parked in the garage. Royce testified that he believed that Pace
parked the car that day. Royce wrote that “the conduct of Mr.
Pace continues to be unacceptable. It appears he simply does
not care about complaints or questions from customers. I have
questioned him about damages to my car that appeared the
night he parked my car, at which time he was rude to the point
of abusive in denying any responsibility. Rather than discuss
the damage to my Jaguar, he stated ‘I don’t damage cars’ and
walked away. Later when questioned further he blamed the
damages on employees ‘not making enough money.’ Paying
$5,000 a year to park, I do not believe I should resort to bribing
people to show care for my car. With a crew of good people it
is a shame that 1 can bring the operation down.”
Royce’s testimony was consistent with his letter. However,
he stated that Pace “was not really rude to me,” adding that he
was “abrupt, to say the least” at times. He noted that when he
first questioned Pace about the damage, Pace told him “look, I
didn’t damage the car” and “walked off”.
At hearing, Pace stated that when Mrs. Alexander came for
her car, he asked his coworkers if her car was on the main floor.
They did not see her car. Pace asked if she called for it. She
said no, but that she came in earlier that day and told an em-
ployee that she would be going out. Pace looked for her name
on the list, but could not find it. He questioned her closely:
“Who did you speak to?” She said she did not know. He asked
for a description of the worker, and she replied that she did not
remember. Pace then said that she spoke to someone but her
name was not recorded. She then “stormed out.” Pace denied
telling her that this was the second time she did not call for her
car and the next time he would not give it to her.
As to Royce, Pace testified that Royce asked him in an “agi-
tated manner” who damaged his car. Pace was working at the
time, moving cars. Pace stated that he interpreted the question
as an accusation that he (Pace) had damaged the car. Pace re-
plied “I don’t damage cars.” He said that later, when Royce
“calmed down,” Pace explained that the damage may have been
due to the fact that there are too many “B” employees, and new
hires with little experience.
The Abuse of Process Lawsuit Against Pace
Respondent filed a lawsuit against Pace in New York State
Supreme Court. The suit, dated August 12, 1996, and bearing
index no. 96/115024 seeks injunctive relief and actual and spe-
cial damages “arising from Defendant’s abuse of process and
prima facie tort of intentionally and maliciously using civil
process to harass GMC.”
The lawsuit alleges, inter alia, that from July 1995 through
July 1996, Pace:

has filed, caused to be filed, or conspired with others to have
filed with several administrative agencies, seven charges
against GMC: six National Labor Relations Board charges
and one charge with the New York State Division of Human
Rights. Pace has also recently threatened to file further ad-
ministrative agency charges against GMC. In addition, Pace
has filed four grievances against GMC with International
Brotherhood of Teamsters Local Union No. 272, his union
representative; has filed charges against GMC with the Inter-
national Brotherhood of Teamsters’ Election Officer; and has
also filed three NLRB charges against the Union.

The lawsuit discusses the individual charges filed, and stated
that Pace knew that the charges and grievances had no merit,
Pace did not appear for hearings on the grievances, and that a
charge was withdrawn by Pace. The lawsuit further alleges that
Respondent was specially damaged since it was required to
obtain counsel to defend the charges.
Respondent sought an order “restraining, prohibiting, and
permanently enjoining Pace from filing charges against GMC
and against his conspiring with and encouraging other employ-
ees to file similar charges against GMC.” The suit sought com-
pensatory damages and special damages of $4620 for the cost
of retaining counsel.
On November 18, 1996, Respondent and Pace stipulated that
Respondent voluntarily dismissed the complaint with prejudice.
The Temporary Restraining Order Against Pace
At the same time that he was given the termination notice on
August 21, Pace was also served with an order to show cause
and temporary restraining order. Respondent had also filed that
lawsuit in New York State Supreme Court. It was dated Au-
gust 20, 1996, and bears index no. 96/115024. It alleges that it
was brought because of Pace’s “intimidation of, harassment of,
and threats of physical violence against GMC and its employ-
ees.”
In the lawsuit Respondent repeated certain of the allegations
in the abuse of process complaint, adding that Pace “used civil
process in a perverted manner in order to obtain a collateral
objective, to harass GMC and intimidate it from properly su-
pervising GMC’s employment-related activities.”
This suit, which contained supporting affidavits, alleged that
Pace threatened to kill Respondent’s officials, and sought an
order restraining and enjoining Pace from threatening or com-
mitting violence against Respondent’s officials or employees,
and appearing at any of Respondent’s facilities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 948
In October 1996 Respondent and Pace stipulated that Re-
spondent voluntarily dismissed the lawsuit with prejudice, and
that the temporary restraining order was dissolved.
The Discharge
Article XIX 1.F. of the collective-bargaining agreement pro-
vides that “no employee may be . . discharged . . . except for
cause. Just cause may include abuse of or discourtesy to cus-
tomers.”
Respondent’s rules and regulations states that “abuse of
and/or discourtesy or lack of response to customers,” among
other violations “are such a threat to our ability to stay in busi-
ness that a violation will result in immediate termination of
employment.” (emphasis in original)
Pace reported to work on August 21 and was given a termi-
nation notice. It stated that he was discharged for violating
article XIX 1.F. of the collective-bargaining agreement—
“continued/repeated abuse of and/or discourtesy to customers,”
and notes the dates of violations as being “through August 5,
1996.” The text of the notice states:

After having received a warning letter addressing the above
on 7/18/96, employee has continued to be discourteous and/or
abusive to customers, as attested by specific complaints from
customers to manager and head supervisor, singling out above
employee specifically.

Pace stated that Kamm, who gave him the termination letter,
said that he had received complaints from customers that he
was rude, and he had been on “final warning” for this matter.
Pace denied receiving the July 18 letter referred to in the dis-
charge letter, but of course that refers to the June 20 letter
which Pace refused to accept, and which was attached to his
paycheck on July 18, which he admitted receiving.
Kamm testified that service to customers is of great impor-
tance in the garage industry in general, and to Respondent,
specifically. Respondent has a large number of monthly cus-
tomers who, at least at Riverview, pay over $400 per month to
park their vehicle. Accordingly, Respondent stresses to its
employees the importance of keeping those customers satisfied.
Respondent has a procedure in which such complaints are in-
vestigated promptly and handled by the garage manager, super-
visor, or Kamm. It is important to remedy such complaints
since customers may leave the garage, or the owner of the ga-
rage may cancel the contract with it.
Kamm testified that he and other corporate officials made the
decision to discharge Pace because of his “repeated abuse and
discourtesy” to customers of Respondent. Kamm stated that
the decision was based on “repeated incidents” reported by
customers, supervisors, the garage manager, and following a
warning for the same misconduct. Kamm testified that Pace’s
discharge was effected because of his “cumulative record of
abuse and discourtesy” of customers.”
Kamm also stated that his decision to discharge Pace was
further based on being told by Incandela that his (Incandela’s)
July 1996 surveys of customers at the Riverview garage indi-
cated that Pace was discourteous and nasty. Incandela testified
that he received more than four negative comments concerning
Pace.
Kamm denied that Pace’s union or concerted activities had a
role in the decision to terminate him.
Kamm noted that he had the option of suspending and even
discharging Pace, according to the contract’s terms, even at the
first instance of customer abuse. However, he was retained and
warning letters were issued in the hope that his performance
would improve.
Evidence of Disparate Treatment
Abuse of and Discourtesy to Customers
The General Counsel asserts that Pace, a 7-year employee,
has been subject to disparate treatment, in that other employees
who have engaged in similar or worse conduct have been re-
tained or transferred.
The collective-bargaining agreement in effect at the time of
Pace’s discharge, states that a warning notice shall be retained
in the employee’s file for one year from the date of the infrac-
tion. Kamm has only relied on warning notices which were up
to 1-year old in making decisions to discipline employees. In
addition, when considering discharge he has relied only on
similar offenses.
In deciding on discipline, Kamm receives reports from his
supervisors, usually by phone. Kamm reviews the employee’s
past record of discipline, and decides then, with the supervisor,
what action to take against the employee. A warning notice, or
corrective action form is completed, which is then sent to the
Union and, occasionally the employee. The type of discipline
issued is based on the nature of the misconduct, the prior record
for committing the same offense, and the employee’s length of
service.
The evidence establishes that other employees have been
discharged for abuse of, and discourtesy to customers.
Denzil Warner, a 12-year employee was given a final warn-
ing in August 1994 for abuse/discourtesy to a customer for
speaking loudly and abusively to a customer. One month later,
in September, Warner used profanity and was abusive and
threatening to a customer. He was terminated. Upon informing
the customer that Warner had been fired, the customer asked
Kamm to reinstate him since she provoked the incident, and
although he had been “impolite” she did not believe that his
actions warranted discharge. Warner was reinstated after a 1-
month suspension without pay. Eleven months later, Warner
was discharged for “repeated discourtesy/abuse toward custom-
ers, co-workers.”
In August 1994 Martin Gobbo, an 8-year employee, received
a final warning for abuse and discourtesy to a customer. Two
months later, in October, he was terminated for “continued
willful abuse of and/or discourtesy to customers.”
Anthony Pierre, a 9-year employee, was discharged in May
1995 for abuse and discourtesy toward customers. He had re-
ceived a final warning for the same offense in August 1994. At
that time, a customer complained that Pierre “went into a huff”
when he gave him a $20 bill for a parking fee, and did not have
smaller change. In May 1995 Pierre washed cars in violation of
company policy, while ignoring waiting customers which was
considered discourtesy toward customers, and was fired.
In October 1995 Raymond Magloire, a 13-year employee,
was discharged, apparently his first offense, for “extremely
GARAGE MANAGEMENT CORP. 949
abusive” conduct including threats to a customer and cursing at
him. The discharge was supported by a letter from the cus-
tomer who stated that when he asked twice for his car, and told
Magloire of the urgency, Magloire cursed at him and said he
wanted to see the customer die.
James Hammonds, a 33-year employee who was covered by
an agreement between Respondent and Local 32B, was the
subject of several warnings for abuse of customers. His file
contains letters of complaint from customers in December 1988
and February 1990, and warning notices in February and May
1990 for abusive treatment. The May 1990 notice suggested
termination, another warning notice in November 1992 in
which suspension and/or discharge was recommended, and
finally, a final warning in March 1994 for “continuing abuse
and discourteous behavior”. Kamm wrote to a Local 32B offi-
cial in May 1994 that “we have been extremely lenient with
Hammonds in deference to his years in the garage but now have
reached a point where his conduct can no longer be tolerated.”
The letter concluded that Hammonds had been terminated.
I reject the General Counsel’s argument that Hammonds’
case is an example of Respondent’s tolerance of customer
abuse. First, as testified by Kamm, the practice used with re-
spect to employees represented by Local 32B permits Respon-
dent to use offenses more remote in time to the current infrac-
tion, and also provides for more corrective actions, such as
several warnings, a suspension and then a termination, than that
utilized in the Local 272 procedure. In any event, in
Hammonds’ case, as with Pace’s, abuse of customers was not
tolerated, and both were discharged for the same misconduct.
There were several cases where a decision to discharge for
customer abuse or discourtesy had been made, but then those
decisions were withdrawn because the customer did not want
the employee terminated, or a further investigation revealed
that there was no merit to the complaint.
In August 1993 Levon McNeil, an 11-year employee, was
given a final warning for being discourteous to a customer.
This was the first incident of this nature. An investigation re-
vealed that the customer was a girlfriend or relative of McNeil,
and that their personal relationship played a part in the
confrontation. The incident was not deemed to be sufficient to
warrant immediate discharge.
Floyd Adams, a 19-year employee was terminated in April
1994 for abuse/discourtesy to a customer. However, 1 week
later, Kamm was asked by the garage owner and the customer
to rescind the termination, essentially because the customer was
at fault. Adams was reinstated.
Carlos DaSilva, a 4-year employee received a warning notice
in August 1994 for abusive conduct toward a customer, but the
customer immediately withdrew her complaint, claiming that
she was at fault for the incident. One month later, a customer
complained about having to wait for his car. DaSilva received
a 1-day suspension and final warning with a note regarding his
“arrogant attitude” and lack of responsiveness to customers.
Inasmuch as the first complaint had been withdrawn, this was
considered his first complaint for such an offense.
In April 1996 a decision was made to discharge Milon
Malave for abuse and discourtesy to a customer. Malave had
been employed for many years by the Mutual Parking Systems,
and had become employed by Respondent in 1994 when it
opened a new garage. Following his termination by Respon-
dent, Malave went to the owner of Mutual, Mr. Brownstein,
who placed him in a garage owned by Mutual but managed by
Respondent. Kamm acquiesced in this transaction because it
was important to him to satisfy Brownstein.
In June 1996 a decision had been made to terminate Angel
Collazo, a 5-year employee who worked alone on the overnight
shift. It was alleged that he ignored customers by keeping the
gate down. An investigation revealed, however, that Collazo
had been in the building and could not hear the bell being rung.
He received a 1-week suspension.
There were letters from two customers in the file of Eddie
Doura, a 10-year employee, dated in September- 1992 and
January, 1993, which complained of abusive and discourteous
conduct. It was stipulated at the hearing that if certain manag-
ers testified they would state that the matter was investigated,
and the letters were not substantiated, and not found suffi-
ciently valid to warrant discipline.
Letters from Riverview customers were received following
Pace’s discharge, in which Pace was praised, and Respondent
was asked to reinstate him. Other letters of praise following the
discharges of other employees had been received from custom-
ers, but they did not cause Respondent’s decision to terminate
to be reversed. The only instances where decisions to terminate
were reversed were where the customer who was the victim of
the alleged abuse either recanted his accusation or requested
reinstatement for the employee—which was not the case with
Pace.
Other Misconduct
The General Counsel argues that disparate treatment is ap-
parent in that more severe conduct than customer abuse or dis-
courtesy has occurred, and employees have not been discharged
for such conduct.
A serious problem occurred prior to 1995 and thereafter con-
cerning employees operating the elevators with the doors open.
Kamm termed it a “major safety problem.” If the doors were
left open a person or vehicle could fall into the open elevator
shaft. In fact, during the OSHA investigation an employee had
driven a car into an open elevator shaft, causing injury and
extensive damage. It was found that employees had intention-
ally jammed or bypassed the elevator’s interlocks, thereby
causing the doors to remain open. The workers did this in order
to speed the delivery of cars. Ordinarily, the employee would
have to get out of the car to open the elevator door, and then
once inside the elevator, would have to shut the door.
This was a common occurrence. Although the Respondent’s
rules provides for immediate termination for tampering with the
interlocks and/or operating the elevators with the doors open,
Kamm testified that the practice was so widespread that he
could not discharge every employee who operated the elevators
with the doors open.
Accordingly, Kamm adopted a policy providing for the ter-
mination of any employee found to have jammed the interlock
or created a condition where the doors were left in an open
position, but only issuing warnings to those who operated the
elevators with the doors open. If it could not be proven that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 950
employee had jammed the interlocks, he was given a warning,
and not discharged.
Pursuant to that policy, employees Tiber Sas and Carlos
Campuzano were discharged in October and November 1995,
respectively. Both admitted to bypassing or jamming the eleva-
tor interlocks. Employees Jose Aguirre, Fernando Alafero,
Sam Cardenas, Donald Cicero, Robert Coello, Yancy Dixon,
William Eamillie, Galliano, Rafael Garcia, Carlos Gieraldo,
Acie Greene, Abe Haznedar, Alfred Inerhunwunwa, Victor
Romano, Adolfo Sanchez, Carlyle Smart, Ken Smith, Joe
Stallings, Diego Villavicencio, and Hans Zapata were given
warning notices for operating the elevators with the doors open.
At times, the whole crew was given warning notices, including
the garage manager for permitting this practice to continue.
Respondent’s actions toward other infractions of its rules
was similar. It discharged employees for not remitting money
received from customers, and altering a timecard which would
result in the employee receiving money he was not due. It also
discharged an employee for fighting with a coworker and for
damaging a car.
ANALYSIS AND DISCUSSION
The Supervisory Issue
The last two collective-bargaining agreements, covering the
periods 1989 through 1992 and 1995 through 1999, set forth the
recognized unit as follows:

Employees for whom the Union is recognized as the exclu-
sive bargaining agent are Working Managers or Working
Foremen, Washers, Floormen, Transporters, Cashiers and all
other persons now or hereafter performing one or more of the
functions of the said included classifications as hereinafter de-
fined.

Accordingly, Respondent has historically recognized the
classification in which Pace was working, either as garage at-
tendant or relief foreman, as included within the bargaining
unit, and nonsupervisory.
Section 2(11) of the Act provides:

The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.

The above listed powers are to be read in the disjunctive.
The possession of one or more of the above powers does not
establish that an employee is a statutory supervisor unless the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment. It is the
burden of the party asserting the supervisory status of an em-
ployee to prove such status. The Board has observed that, in
enacting Section 2(11), Congress stressed that only persons
with “genuine” management prerogatives” should be consid-
ered supervisors as opposed to “straw bosses, leadmen . . . and
other minor supervisory employees.” Chicago Metallic Corp.,
273 NLRB 1677, 1688 (1985). “[T]he Board has a duty to
employees . . . not to construe supervisory status too broadly
because the employee who is deemed a supervisor is denied ...
rights which the Act is intended to protect.” General Security
Services Corp., 326 NLRB 312 (1998). The Board will not
lightly find an employee to be a supervisor because such an
employee loses his rights under Section 7 of the Act. Adco
Electric, 307 NLRB 1113, 1120 (1992).
Applying the above principles to the facts in this case, I must
conclude that Pace was not at any time a statutory supervisor.
Respondent argues that Pace possessed supervisory authority
as a relief foreman when he relieved the manager. It should be
noted that even the manager is included within the contractual
unit. Significantly, Regional Supervisor Incandela stated that
Manager Berrios was “ultimately responsible” for the garage 24
hours per day, 7 days per week, regardless of whether he was
present. Pace, employed at night was admittedly “in charge” of
the garage at that time.
Pace was responsible for the collection of money, checking
the garage, making sure that cars were parked, and that custom-
ers’ cars were available for the morning shift. He did not hire
or fire any employees, or effectively recommend such action.
Respondent argues that Pace assigned employees their break
times. Pace and Matos testified that employees knew when to
take their breaks depending on the workload of the garage.
Even assuming that Pace assigned their break times, such as-
signment was routine and regular, based on how busy the ga-
rage was at the time, and involved no independent judgment.
Even Manager Berrios testified that he does not “really” have
to tell employees to take a break and that they know when the
busy period is. Pace’s limited role, if any, in assigning em-
ployees to park cars does not require the exercise of independ-
ent judgment. Greenhorne & O’Mara, Inc., 326 NLRB 514
(1998).
The evidence established that the work that Pace performed,
collecting money and parking cars, was the same as the other
attendants. Relief Foreman Smartt’s duties as relief foreman,
cannot be compared to those of Pace. Smartt worked in a dif-
ferent garage which serviced rental cars, and he directed em-
ployees in their preparation. Pace was not involved in any such
activities.
Regarding training of new employees, Pace was not involved
in such activity. New employee Matos was not trained by Pace
since Matos knew what the job involved.
Even concerning recommending discharge or transfer,
Smartt’s testimony does not support a finding that Pace pos-
sessed supervisory authority. Thus, Smartt’s testimony that he
recommended to a supervisor that an employee should be re-
moved, was not automatically acted on by the supervisor.
Rather, the supervisor visited the premises, and investigated the
incident, including speaking with the employee before remov-
ing the employee.
Field Supervisor Denaro’s testimony that the relief foreman
has the authority to ask an employee work to overtime was
undermined by his further testimony that the foreman could not
require the employee to work overtime. His testimony that he
acted on a relief foreman’s evaluation of a new employee by
GARAGE MANAGEMENT CORP. 951
terminating or transferring the worker was not specifically re-
lated to Pace’s authority or experience.
The above recitation of Pace’s duties establishes that he does
not possess, and has not exercised any supervisory authority.
Assuming he has provided his appraisal of a new employee to a
supervisor, there has been no evidence that he effectively rec-
ommended that anyone be removed, discharged or transferred.
Necedah Screw Machine Products, 323 NLRB 574, 576
(1997); and Lincoln Park Nursing Home, 318 NLRB 1160,
1162 (1995). Even where an evaluation has been made, that
evaluation is investigated by a supervisor who decided what
action to take. Amboy Care Center, 322 NLRB 207, 212 (1996)
The evidence does not establish that Pace made assignments
to employees. The most that can be said is that he told employ-
ees to retrieve certain cars and certain times. First, such as-
signments do not demonstrate the exercise of independent
judgment. Customers call in to the garage the times they need
to pick up their cars, and those times are recorded on a board in
the garage. Thus, Pace simply tells the employees to get the
cars requested. This is the exercise of routine, general authority
typical of a non-supervisory leadman rather than true supervi-
sory authority within the meaning of Section 2(11) of the Act.
North Jersey Newspapers Co., 322 NLRB 394, 395 (1996).
In Diamond Parking, 198 NLRB 239 (1972), a case involv-
ing parking lots, the Board held that garage managers who have
attendants working under them are not statutory supervisors.
The facts there are quite similar to this case:

[A]ll the garage managers perform substantially the same
work as the attendants. The attendants and garage managers
park cars, collect parking fees, and check the garage to make
sure that everybody has paid the fee. When a garage manager
leaves work an attendant takes over. Two of the garage man-
agers are paid the same as attendants. The garage managers
routinely direct attendants to wash cars or pump gas. Only
the district manager has authority to discharge employees, and
the operations manager schedules the work, receives em-
ployee complaints, and is notified of absences.

Similarly, here the manager, relief foreman, and the atten-
dants all work together in parking cars and collecting money.
Any direction of the attendants by Pace is merely routine inas-
much as the employees, through their experience and the nature
of the work, know exactly what has to be done.
I accordingly find and conclude that Respondent has not
proven that Pace is a statutory supervisor.
The General Counsel’s Prima Facie Case
Pace’s Activities Were Protected and Concerted
As set forth above, Pace was extremely active in writing and
filing charges and grievances, both for himself and in behalf of
other employees, and writing for himself and other workers
notices of intent to cooperate with OSHA, which were sent to
Respondent. Pace also filed a complaint with OSHA and with
the Union’s election officer.
Pace unquestionably engaged in protected, concerted activi-
ties by his filing charges, grievances, and through the other
activities set forth above. The filing of a charge is protected
activity. Summitville Tiles, 300 NLRB 64, 65 (1990).
In NLRB v. City Disposal Systems, 465 U.S. 822, 840 (1984),
the Supreme Court endorsed the Board’s Interboro doctrine2
which recognizes that an employee’s “honest and reasonable
invocation of a collectively bargained right constitutes con-
certed activity, regardless of whether the employee turns out to
have been correct in his belief that his right was violated.”
The Board has held that “it is well settled that the merit of a
complaint or grievance is irrelevant to the determination of
whether an employee’s conduct is protected under the Act, so
long as the complaint was not made in bad faith.” Wagner-
Smith Co., 262 NLRB 999 fn. 2 (1982), or with malice. Afro-
Urban Transportation, 220 NLRB 1371 (1975).
Respondent argues that such activities were not protected
because Pace acted out of malice and bad faith in order to pro-
mote his personal goals and ambitions. Respondent asserts that
Pace, who ran for union business agent with the rank and file
unity slate, sought to show employees, through the filing of
these actions, that the rank and file unity slate could do more to
improve their conditions than the incumbent union leadership.
Respondent further notes that the charges filed with the
Board by Pace in July 1995 and in March 1996 were dismissed
following an investigation and another charge was withdrawn
by him. In addition, the charge he filed with OSHA alleging
retaliation for his cooperation with that agency was dismissed.
“Charges before the Board are commonly withdrawn or dis-
missed, and such disposition is not tantamount to a finding that
the charges have been filed in bad faith.” LP Enterprises, 314
NLRB 580 (1994).
Not all of Pace’s filings were dismissed or withdrawn.
Pace’s grievance concerning the deduction from his wages for
parking resulted in Respondent’s reimbursement for the amount
deducted. Further, the Teamster election officer found merit in
Pace’s allegations that he was improperly denied the right to
campaign for union office.
Pace’s activities in filing charges, grievances, and complain-
ing to OSHA and the Union’s election officer constituted pro-
tected, concerted activities regardless of whether his charges,
grievances, and complaints were correct. Eastex, Inc., 437 U.S.
556, 564–567 (1978); and Systems with Reliability, Inc., 322
NLRB 757, 760 (1996).
There is no evidence to support Respondent’s assumption
that Pace undertook these activities in order to promote himself
and the rank and file unity slate.
However, even assuming that Pace engaged in the above ac-
tivities in order to promote himself and the rank and file unity
slate with his coworkers, such motivation is not proof of malice
or bad faith. Any union seeking to supplant an incumbent as
representative, and any person running for office seeking to
unseat an incumbent could be expected to demonstrate to the
voters that, if elected, they could be expected to better serve the
interests of the electorate. Pace did no more than that. If by the
successful prosecution of the charges and grievances Pace
could make such a showing, there was nothing improper in his
doing so.
Respondent argues further that Pace’s actions were moti-
vated by his desire that he and coworkers Hernandez and Matos

2 Interboro Contractors, 157 NLRB 1295 (1966).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952
be permitted to work without regard to Respondent’s rules. It
is true that Pace asked Respondent’s officials to sign a docu-
ment which stated that Respondent agreed to waive its right to
exercise its rules and regulations, policies and procedures to-
ward himself, Matos and Hernandez, when the exercise of those
rules would result in the reduction of wages, shift changes,
suspensions, layoffs, transfer, or termination of the three men.
Pace testified that his purpose in seeking that agreement was
his belief that he and the two others had been discriminated
against by Respondent, and he thereby sought relief from such
discrimination. The fact that Pace sought that agreement adds
nothing to Respondent’s argument that his activities were not
protected. In asking Respondent to sign the agreement, Pace
sought to remedy the treatment which he believed to be unfair,
and which had been the subject to the charges and grievances
filed by him or with his support.
Finally, Respondent argues that Pace has exhibited disdain
and malice toward it, by telling employees and customers about
his dislike for the company and its management. There was
also testimony that he threatened to kill its officials. Respon-
dent argues that there is a connection between Pace’s hatred of
the company and his alleged malice and bad faith in filing the
charges, grievances, and complaints. However, even assuming
I credit such testimony, it cannot be said that Pace’s hostility
toward Respondent motivated his filings, which had a legiti-
mate basis of their own.
I accordingly find and conclude that Pace’s activities in be-
half of himself and other employees were protected, concerted
activities.
The Law Suits Against Pace
The complaint alleges that the two law suits filed against
Pace violated the Act in that they were filed because Pace en-
gaged in the conduct set forth above, including the filing of
charges and grievances, assisting other employees in doing so,
making a complaint to the Union’s election officer, and filing a
complaint with OSHA.
The first lawsuit alleges that it was filed because Pace en-
gaged in abuse of process and malicious prosecution.
In Bill Johnson’s Restaurant, v. NLRB, 461 U.S. 742, 744
(1983), the Supreme Court held that it was an enjoinable unfair
labor practice for an employer to prosecute a baseless lawsuit
with the intent of retaliating against an employee for the exer-
cise of rights protected by Section 7 of the Act.
The Court also held, however, that if the litigation was no
longer pending, and the lawsuit is “withdrawn or is otherwise
shown to be without merit” and the employer did not prevail,
the Board may resolve whether the employer acted with a re-
taliatory motive in filing the lawsuit. 461 U.S. at 747.
Teamsters Local 520 (Alberici Construction), 309 NLRB 1199,
1200 (1992); and Braun Electric Co., 324 NLRB 1, 2 (1997).
Here, the 2 lawsuits were voluntarily dismissed with preju-
dice, and are no longer pending. Accordingly, the only issue is
whether Respondent filed the lawsuits against Pace for retalia-
tory reasons. Summitville Tiles, supra.
The evidence is clear that the initial lawsuit dated August 12,
1996, against Pace was filed for a retaliatory purpose. The
lawsuit alleges that it was filed because he filed various
charges, grievances, and complaints against Respondent, and
accuses him of maliciously using civil process to harass Re-
spondent, and abuse of process because he engaged in the con-
duct of filing such actions. The suit states that Pace filed the
cases even though he knew they were without merit, and that
certain of them were dismissed. The suit seeks a permanent
injunction against Pace from filing charges against Respondent
and against his conspiring with and encouraging other employ-
ees to file similar charges against it. In Summitville Tiles, su-
pra, the Board found a retaliatory motive in the employer’s
testimony that the lawsuit was filed because he believed that
the union and the employees, who as here were alleged as con-
spirators, harassed him by filing charges.
Kamm testified that he believed that Pace’s filing of certain
charges with the Board and other agencies constituted harass-
ment of Respondent. Kamm, who participated in the discus-
sions leading up to the decision to file the lawsuit, testified in
contradiction to the allegations in the suit that Respondent did
not want him to stop filing the charges. He noted that the suit
was not filed based on Pace’s filing of specific cases with the
Board, but rather for his “cumulative” filings with various
agencies. Kamm added that the lawsuit was filed because he
believed that Pace filed nonmeritorious cases because of self-
interest, for his own “gain and notoriety.”
The evidence is thus clear that this lawsuit was filed in re-
taliation for Pace’s filing the various charges, grievances, and
complaints against Respondent. The litigation was filed in
response to Pace’s filing of these actions, and sought to prevent
him from filing further charges against Respondent, and pre-
vent him from “conspiring with or encouraging” other employ-
ees to file charges against it. Thus, this lawsuit not only was
brought to retaliate against Pace for the filing of the various
causes, and, for engaging in protected concerted activities with
others, but to specifically enjoin him from engaging in his right
to file further charges against it. The lawsuit was a direct at-
tempt by Respondent to nullify the Board’s jurisdiction as it
affects Pace. LP Enterprises, supra.
I accordingly find and conclude that Respondent’s filing of
the lawsuit dated August 12, 1996, violated Section 8(a)(1) of
the Act.
The second lawsuit, dated August 20, 1996, specifically
states that it is an action against Pace because of his “intimida-
tion of, and threats of physical violence against GMC and its
employees.” Its allegations, supported by affidavits, set forth
that Pace had threatened physical violence against Respon-
dent’s officials.
This lawsuit’s primary purpose was to obtain a temporary re-
straining order, restraining and enjoining Pace from threatening
or committing violence against Respondent’s officials or em-
ployees, and from appearing at any Respondent owned or oper-
ated facility.
This lawsuit set forth statements allegedly made by Pace,
threatening Respondent’s officials, which prompted the action.
As such, Respondent did not act improperly in bringing the
lawsuit. The fact that this lawsuit realleged the matters set
forth in the first matter, specifically that Pace has engaged in
“vexatious, willful and malicious abuse of process” against
Respondent by filing nonmeritorious charges and complaints
GARAGE MANAGEMENT CORP. 953
does not affect my conclusion that the filing of this lawsuit was
not a violation. It was not brought in response to Pace’s filing
charges, grievances, and complaints, and no remedy was sought
concerning Pace’s filing those actions.
I accordingly find no violation in Respondent’s filing the re-
quest for a temporary injunction against Pace.
The Discharge
I have found, above, that Pace engaged in protected union,
and protected concerted activities. Respondent’s animus to-
ward his engaging in such activities is amply demonstrated by
Respondent’s lawsuit against him.
The suit, as set forth above, charges Pace with “vexatious,
willful and malicious abuse of process” against Respondent by
filing, causing to be filing, or conspiring with others to have
filed, and threatening to file, charges with the Board and New
York State Division of Human Rights, grievances with the
Union, and with the Teamster election officer. Respondent
sought to “permanently” enjoin Pace from filing charges
against it, and from “conspiring and encouraging other employ-
ees to file similar charges” against it.
It is quite clear, therefore, that Respondent possessed hostil-
ity and animus toward Pace for his active role in personally,
and in combination with other employees, exercising his rights
under Section 7 of the Act.
While in the process of filing these cases against Respon-
dent, Pace was discharged. I accordingly find that the General
Counsel has made a showing that Pace’s union and concerted
activities, and his activities in filing charges with the Board,
were a motivating factor in his discharge. Wright Line, 251
NLRB 1083 (1980).
Once the General Counsel has made such a showing, the
burden shifts to Respondent to prove that it would have dis-
charged Pace even in the absence of his protected activity.
Wright Line, supra. I find that Respondent has met its burden.
Respondent has established that customer service is ex-
tremely important to its business. That fact has been recog-
nized in the parties’ collective-bargaining agreement, which
provides that abuse of and discourtesy to customers is consid-
ered just grounds for discharge. In addition, Respondent’s rules
provide that such conduct is grounds for immediate termina-
tion.
It has also been established that two customers complained
to Respondent about Pace’s misconduct. The complaints,
which were spontaneous, were not manufactured by Respon-
dent. The customers wrote letters of complaint and testified
about the situations involved. Pace conceded that there were
incidents involving the two customers, and that he had a dia-
logue with them which the customers apparently construed as
being discourteous and abusive. Respondent undertook an
investigation into the incidents, found that they occurred, and
concluded that Pace had been discourteous and abusive to
Alexander and Royce.
Having received a final warning on February 6 following his
failure to be responsive to a customer’s request, which Respon-
dent considered discourtesy, and a warning dated June 20
which advised him that Respondent had been advised that cus-
tomers complained of discourtesy, Pace was advised to imme-
diately “turn things around.”
The blame for not accepting that June 20 certified letter must
be placed on Pace. His refusal to accept it because he was not
expecting a certified letter and did not know the sender does not
alter the fact that Respondent considered his conduct, up to that
point, sufficient to warrant a strong warning.
Following the final warning of February 6, 1996, Pace was
involved in two verified instances of customer abuse or dis-
courtesy which Respondent reasonably believed constituted
misconduct of a level warranting termination. Jordan Marsh
Stores Corp., 317 NLRB 460, 476 (1995); and GHR Energy
Corp., 294 NLRB 1011, 1012–1013 (1989).
I can find no evidence of disparate treatment. Other employ-
ees have been discharged, even after only one offense, for cus-
tomer abuse, or discourtesy. As to other instances of violations
of company policy concerning safety, Respondent has a rea-
soned policy of discharging employees found to have tampered
with the interlocks, but only warning those who operate the
elevators with the doors open.
I find that Respondent acted consistently and fairly in issuing
a final warning to Pace, and then a strong warning urging him
to immediately correct his behavior while certain incidents
were being investigated. Nevertheless, thereafter, the incident
with Royce occurred, who then wrote a strong letter to Respon-
dent complaining of Pace’s “abusive” conduct and refusal to
answer questions concerning complaints.
I accordingly find and conclude that the termination of Pace
was not unlawful. The Mandarin, 223 NLRB 725, 729–730
(1976).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By filing a baseless lawsuit against Pace dated August 12,
1996, index no. 96/114523, in retaliation for his protected con-
certed activities, Respondent violated Section 8(a)(1) of the
Act.
3. Respondent has not violated the Act by filing a lawsuit
against Pace dated August 20, 1996, index no. 96/115024.
4. Respondent has not violated the Act by its discharge of
Pace.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Inasmuch as the lawsuit found to have violated the Act has
already been voluntarily dismissed with prejudice, Respondent
will not be ordered to withdraw it.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 954
ORDER
The Respondent, Garage Management Corporation, New
York, New York, its officers, agents, successors, and assigns,
shall
Cease and desist from
(a) Initiating a baseless lawsuit against employees in retalia-
tion for their protected concerted activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately on receipt and maintained for 60 con-

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
secutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since August 12, 1996.
(b) If this Order is enforced by a judgment of the United
States court of appeals, the words in the notice reading “posted
by order of the National Labor Relations Board” shall read
“posted pursuant to a judgment of the United States Court of
Appeals enforcing an order of the National Labor Relations
Board.”
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(d) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.